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Australian Border Force Amendment (Protected Information) Bill 2017

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2016-2017

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

AUSTRALIAN BORDER FORCE AMENDMENT

(PROTECTED INFORMATION) BILL 2017

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration and Border Protection,

the Hon. Peter Dutton MP)

 

 



 

Amendments to the Australian Border Force Amendment (Protected Information) Bill 2017

OUTLINE

 

The Australian Border Force Amendment (Protected Information Bill 2017 (the Bill) proposes to amend the Australian Border Force Act 2015 (the ABF Act) to amend the secrecy and disclosure regime set out in Part 6. 

 

In particular, the ABF Bill proposes to repeal the definition of “protected information” in subsection 4(1) of the ABF Act, which covers any information obtained in a person’s capacity as an entrusted person, and substitute a definition of “Immigration and Border Protection information”, so that only specific kinds of information are covered by the secrecy and disclosure provisions in Part 6 of the ABF Act. It would be an offence to disclose or make a record of such information, which is punishable by imprisonment for 2 years.        

 

However, new kinds of information not already covered by the new definition of “Immigration and Border Protection information” that require protection by the Department of Immigration and Border Protection (the Department) could be identified in the future. Such information may require protection more quickly than an amendment to the ABF Act would permit.  Therefore, the ABF Bill includes a new power in subsection 4(7) that would enable the Secretary of the Department to prescribe additional kinds of information, by legislative instrument, for the purposes of paragraph (f) of the new definition of “Immigration and Border Protection information”.  This would enable a swift response to the need to protect from disclosure information that is not covered by one of the other kinds of information set out in this new definition.

 

The ABF Bill is currently the subject of an inquiry by the Senate Legal and Constitutional Affairs Legislation Committee. Concerns have been raised in submissions to this inquiry, and at the public hearing on the Bill, in relation to the Secretary’s power to prescribe additional kinds of information.  As this has the potential to widen the application of the offence provision, concerns have been raised that this power should not be exercised by an unelected public official.

 

Therefore, in order to address these concerns, it is proposed to amend proposed new subsection 4(7) so that this power can only be exercised by the Minister, and not the Secretary.  As the instrument prescribing new kinds of information is a legislative instrument, it will be subject to scrutiny by both Houses of Parliament and may be subject to disallowance.

 

FINANCIAL IMPACT STATEMENT

 

The amendments have no financial impact.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill, and the Government amendments to the Bill, and assesses that the amendments are compatible with Australia’s human rights obligations. A copy of the Statement of Compatibility with Human Rights is at Attachment A .

AMENDMENTS TO THE AUSTRALIAN BORDER FORCE AMENDMENT (PROTECTED INFORMATION) BILL 2017

 

 

NOTES ON AMENDMENTS

 

Amendment (1) - Schedule 1, item 5, page 5 (line 1)

 

1.                   This amendment amends proposed subsection 4(7) of Australian Border Act 2015 (the ABF Act), to be inserted by item 5 of Schedule 1 to the Bill, to delete the reference to the Secretary and substitute with a reference to the Minister.  This will mean that the power to prescribe additional kinds of information for the purposes of paragraph (f) of the definition of “Immigration and Border Protection information” will be exercisable by the Minister administering the ABF Act, and not the Secretary. 

 

Amendment (2) - Schedule 1, item 5, page 5 (line 4)

 

2.       This amendment also amends proposed subsection 4(7) of Australian Border Act 2015 (the ABF Act), to be inserted by item 5 of Schedule 1 to the Bill, to delete the reference to the Secretary and substitute with a reference to the Minister.  This amendment will mean that before the Minister prescribes additional kinds of information, he or she must be satisfied of certain matters set out in subsection 4(7).  The matters are that the disclosure of the information would or could reasonably be expected to prejudice the effective working of the Department, or otherwise harm the public interest.

 

 

 

 

 

 

 

 

 

 

 

 



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Government Amendments to the Australian Border Force Amendment (Protected Information) Bill 2017

 

The Government amendments to the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of amendments to the Bill

 

This Statement of Compatibility with Human Rights relates to the Government amendments to the Australian Border Force Amendment (Protected Information) Bill 2017 (the Bill) and should be read together with the Statement of Compatibility with Human Rights prepared for the Bill.

 

The amendments to the Bill will amend proposed new subsection 4(7) of the Australian Border Force Act 2015 to allow the Minister, rather than the Secretary of the Department, to prescribe, by legislative instrument, additional kinds of information for the purposes of paragraph (f) of the definition of “Immigration and Border Protection Information”, if the Minister is satisfied that disclosure of the information would or could reasonably be expected to:

 

a)       prejudice the effective working if the Department; or

b)       otherwise harm the public interest.

These amendments do not engage any relevant human rights and freedoms in addition to those already addressed in the statement of compatibility with human rights set out in the Explanatory Memorandum for the Bill.  Therefore, t o the extent that the Bill engages human rights, the limitations are reasonable, necessary and proportionate. Accordingly, these amendments are compatible with the relevant human rights obligations.

 

The Hon. Peter Dutton MP, Minister for Immigration and Border Protection